On September 1, 2016, a New York appellate court ended two closely watched right of publicity lawsuits brought by Lindsay Lohan and Karen Gravano against Take Two Interactive Software Inc. (publisher of Grand Theft Auto) and developer, Rockstar Games. Lohan — star of Mean Girls and the 1998 remake of The Parent Trap — and Gravano — a star on VH1’s reality television show Mob Wives — alleged that the Grand Theft Auto V: San Andreas video game featured the celebrities’ likenesses without their permission in violation of their right of publicity.

These lawsuits represent the latest in a series of recent, highly publicized cases highlighting the tension between a person’s right of publicity — the right to control the use of one’s name, image, or likeness — and the First Amendment’s speech protections. The Lohan and Gravano lawsuits offer a cautionary tale on the importance of jurisdiction and highlight the complex nature of right of publicity jurisprudence here in the U.S.

The Lohan and Gravano Lawsuits 

In 2014 through separate lawsuits, Lohan and Gravano sued Take-Two Interactive and Rockstar over their blockbuster hit, Grand Theft Auto V (GTA V). The video game takes place in the fictional city of “Los Santos” — a city based on modern-day Los Angeles — in the fictional state of “San Andreas” (i.e., California). Players control various characters throughout the game as they explore Los Santos, interact with its inhabitants, and embark on approximately 80 main story missions and dozens of optional sidequests. Like its predecessors, GTA V is famous for its satirical portrayal of the real world. From (in)famous landmarks to dueling radio political pundits, sprawling fast food chains to relentless paparazzi, the Grand Theft Auto series has always gone to great lengths to feature (and poke fun at) several aspects of modern society. GTA V is no exception.

Against this backdrop, Lindsay Lohan sued the makers of GTA V, claiming that one of GTA V’s characters, “Lacey Jonas,” misappropriated Lohan’s likeness in violation of New York’s right of publicity statute. Lohan alleged that the GTA V character copied Lohan’s “bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose” without her permission. Lohan also claimed that GTA V’s references to Lohan’s role in the movie Mean Girls, the West Hollywood hotel where she once lived, and how she deals with paparazzi were all misappropriated aspects of her likeness.

Karen Gravano initiated a similar lawsuit earlier in 2014. Relying on the same statue as Lohan, Gravano alleged that GTA V’s “Antonia Bottino” character copied both Gravano’s likeness and life story without her permission. Gravano’s father, Sammy “The Bull” Gravano, was an underboss in the Gambino crime family who testified against his former mob boss in exchange for a reduced jail sentence. Gravano relocated to the Southwest and eventually starred on VH1’s Mob Wives television show. GTA V’s Antonia Bottino is also the daughter of a mob-boss-turned-informant, who meets the player in San Andreas as she is being chased by the Gambetti crime syndicate in retaliation for her father’s plea bargain. The player later learns that Bottino’s father doesn’t want her to appear on Wise Bitches, an in-game parody of Mob Wives.

Last month, a New York appeals court disposed of both cases simultaneously. In a terse opinion, the court held that both lawsuits failed because GTA V did not feature Lohan’s or Gravano’s name, portrait, picture, or voice as required by New York Civil Rights Law Section 51. The court emphasized that, even if the GTA V characters were close approximations of Lohan and Gravano, GTA V never featured the celebrities’ pictures, names, or acting talent in GTA V or in advertising materials for the game. In rejecting the “close enough” approach asserted by Lohan and Gravano, the court also noted that video games did not fall under the statutory definitions of “trade” or “advertising” and, thus, could not trigger liability under Section 51. Rather, the court concluded, GTA V was closer to a work of fiction and satire and therefore entitled to First Amendment protection under the U.S. Supreme Court’s decision in Brown v. Entertainment Merchants Association (striking down California’s 2005 ban on the sale of violent video games to children without parental supervision).

It is unclear whether Lohan or Gravano will appeal to New York’s highest court.

The Right Of Publicity: A Diverse Landscape 

The Lohan and Gravano lawsuits would have come out very differently had they been heard in another jurisdiction. The right of publicity generally stems from the right to privacy, which is predominantly a creature of state law. Although courts agree that the right of publicity is constrained to some extent by the First Amendment, the extent of that constraint currently depends almost entirely on where the right of publicity claim is asserted.

This has important and often frustrating practical consequences for content creators. In an era where content is disseminated over the internet in all 50 states, in-house legal teams are faced with navigating a complicated patchwork of right of publicity laws. Without clear guidance, content creators are sometimes left puzzled about what they are allowed to say or create. Lohan/Gravano underscores how important it is to consider jurisdiction when asserting or defending against a right of publicity lawsuit.

Generally, the law governing a right of publicity suit will depend on where the plaintiff is “domiciled,” which is not necessarily where the plaintiff lives at the time the lawsuit is brought. If the plaintiff is domiciled abroad, it’s important to check whether the country of domicile even recognizes a right of publicity. Many foreign countries, such as the U.K., do not. If the plaintiff is domiciled in the U.S., the laws of the domiciliary state will typically control. But some states, like Washington and Indiana, allow right of publicity suits to be brought regardless of where the plaintiff is domiciled.

State right of publicity laws vary immensely. Some states, like New York, have narrow right of publicity laws that only protect the use of a person’s name, portrait, picture or voice, and only in the context of trade or advertising. California, by contrast, protects the use of a person’s general likeness in addition to their name, portrait, picture or voice in any manner including, but not limited to, advertising. See Cal. Civ. Code § 3344. Some states only provide a statutory right of publicity; others also provide a separate common law right. While many states only recognize a right of publicity during an individual’s lifetime, several extend the right beyond death. But even the states that recognize a posthumous right of publicity impose different restrictions and time limitations on those causes of action — e.g., California: 70 years after death; Nevada: 50 years after death; Indiana: 100 years after death.

Courts are similarly divided, especially when it comes to striking a balance between the First Amendment and protecting the right of publicity. The U.S. Court of Appeals for the Second Circuit, for example, errs on the side of protecting speech. In Rogers v. Grimaldi, the Second Circuit considered whether the interest in protecting a celebrity’s image outweighed a filmmaker’s freedom of expression. It held that the use of a mark or a person’s likeness in a fictional work was protected by the First Amendment so long as (1) It had some artistic relevance to the work; and (2) It was not a disguised advertisement. The Rogers test has since been adopted by several courts and continues to represent one of the most speech-protective tests applied in the right of publicity context.

Other courts take a very different approach. The U.S. Court of Appeals for the Ninth Circuit, for example, applies a transformativeness test. In In re NCAA Student–Athlete Name & Likeness Licensing Litigation, the Ninth Circuit considered whether student athletes could prevent Electronic Arts (EA) from using their height, weight, skin color, play position and jersey numbers, but not their names in EA’s NCAA Football video game. The court held that the First Amendment did not protect EA’s use of the athletes’ likenesses because the use was not “transformative” — i.e., it did not add enough creative elements to the athletes’ likenesses to change the use into more than a mere reproduction. California courts apply a slightly modified version of this test. Noriega v. Activision/Blizzard, Inc., No. BC551747 (Cal. Super. Ct. Oct. 27, 2014, for example, a superior court held that the First Amendment protected Activision/Blizzard’s use of Manuel Noriega’s likeness in Call of Duty: Black Ops II because the game as a whole, not the use itself, was transformative.

But the Ninth Circuit’s approach is not internally consistent. In In re NCAA Student, the Ninth Circuit expressly declined to adopt the Second Circuit’s speech-protective Rogers test. But the very same day it decided In re NCAA Student, the Ninth Circuit applied Brown v. Electronic Arts, Inc., concluding that the First Amendment barred trademark infringement claims brought against EA over its Madden NFL game. Implicit in the court’s opinion was the principle that the right of publicity was somehow less constitutionally constrained than trademark rights. But earlier this year, the Ninth Circuit appears to have reversed course. In Sarver v. Chartier, it concluded that the First Amendment protected the makers of the Academy Award-winning film The Hurt Locker from claims that the underlying story and events, which were based on Sarver’s life story without his permission, violated Sarver’s right of publicity.

Meanwhile, the U.S. Court of Appeals for the Eighth Circuit ignores whether the use or work is transformative and instead focuses on a case-by-case balancing test. In C.B.C. Distribution & Marketing., Inc. v. Major League Baseball Advanced Media, L.P.., the court held that use of names and statistics of baseball players for fantasy baseball products was entitled to First Amendment protection, and that protection trumped the players’ otherwise-valid right of publicity claims because that information was firmly rooted in the public domain. But in Dryer v. National Football League, the court instead relied on a combination of copyright preemption and First Amendment principles to conclude that video footage used by the NFL did not violate the right of publicity of football players. The U.S. Court of Appeals of the Tenth Circuit uses a similar ad hoc balancing test. See Cardtoons, L.C. v. Major League Baseball Players Assoc.

Some state courts apply their own tests. The Missouri Supreme Court, for example, applies a “predominant use” or “predominant purpose” test. In Doe v. TCI Cablevision, it concluded that a comic book villain based on the name of a famous hockey player was not protected by the First Amendment because the name was used predominantly for monetary, not expressive, purposes. Interestingly, the use here — athlete to super villain — may have been sufficiently transformative under California’s tests.

While these examples are by no means exhaustive, they illustrate just how differently courts approach the tension between free speech and the right of publicity. Earlier this year, the U.S. Supreme Court had an opportunity to weigh in but declined to do so in Electronic Arts Inc. v. Davis. Like In re NCAA Student, Davis involved EA’s unlicensed use of certain football players’ likenesses in one of its video games. By denying EA’s certiorari petition, the Supreme Court effectively upheld the Ninth Circuit’s holding that EA’s use was significant enough to infringe the players’ right of publicity. See Davis v. Elec. Arts, Inc. While the Court offered no explanation for its decision, some suspect it refused to review Davis because In re NCAA Student, the precedent upon which Davis was based, was never appealed. But given the lack of uniformity between the federal and state courts, the issue is ripe for the Supreme Court’s consideration.

Takeaways and Implications

In the absence of Supreme Court guidance, understanding how to navigate the legal landscape is more important than ever. As illustrated by Lohan/Gravano, the success of a right of publicity claim depends largely on where it is asserted. Content creators need not shy away from their ideas in the face of this uncertainty. Rather, they should familiarize themselves with the right of publicity laws in high-risk jurisdictions so that creative teams and decision makers can make informed choices on how best to proceed.

While it’s impossible to divine how the law will evolve in this area, we have some potential clues. The Ninth Circuit’s decision in Sarver may suggest a move away from the oft-criticized transformativeness test in favor of a more speech-protective approach like the Rogers test. Given the right case without the procedural complications of Davis, the Supreme Court may yet weigh in on the appropriate balance between the right of publicity and freedom of speech. Alternatively, Congress may decide to create a federal right of publicity cause of action much like it did with trade secrets earlier this year with the Defend Trade Secrets Act of 2016. But with courts so divided and one of our nation’s most fundamental rights at stake, change is almost inevitable.